Newnham v Ramsay

[1991] HCATrans 360

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1991

B e t w e e n -

NOEL RONALD NEWNHAM

Applicant

and

DAMIEN JOHN RAMSAY

Respondent

Application for special

leave to appeal

BRENNAN J
DAWSON J

MCHUGH J

Newnham 1 13/12/91

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 DECEMBER 1991, AT 10.09 AM

Copyright in the High Court of Australia

MR R.I. HANGER, QC:  May it please the Court, I appear with

my learned friend, DR C.G.S.L. JENSEN. (instructed

by K.M. O'Shea)

MR P.R. DUTNEY, QC:  I appear with MR P.J. McHUGH for the

respondent. (instructed by Bailey & Bailey)

BRENNAN J: Thank you, Mr Hanger.

MR HANGER:  If Your Honour pleases, the case raises the

issue of the position of a police constable who is
in effect on probation under the terms of the

Police Act, Queensland, and the question of whether

he is entitled to a hearing before being

discharged. The Full Court by a majority on the

interpretation of the Act held that he was not

entitled, and we adopt the reasoning of

Mr Justice Williams, the dissenting judge.

The provisions of section 10 are, in our

respectful submission, clear.	I think the Court
has the Police Act before it.

BRENNAN J:  We will have shortly, and we have it, at any

event, in the appeal books, Mr Hanger.

MR HANGER:  We refer to the first proviso which is relevant

here:

Provided that every person who is

appointed to be a constable shall be appointed

in the first instance for one year only and

if, at the expiration of that year, the

Commissioner is of the opinion that

circumstances warrant it, may be appointed for

a further period of six months -

and that happened in this case -

and may, if the Commissioner considers he is

unsuitable for any reason whatsoever to
continue in the Police Force, be discharged by
the Commissioner at any time before the
expiration of one year -

or the extended period of six months -

and without assigning any reason other than

that the Commissioner considers he is

unsuitable to continue in the Police Force.

Our submission is that the terms of that section

are so wide, particularly when considered in

conjunction with the balance of the Act, that there

is a legislative intention manifest to deprive him

of any right to a hearing before he be dismissed.

Newnham 2 13/12/91

DAWSON J: But the commissioner has got to decide that he is

unsuitable, does he not?

MR HANGER:  Yes, Your Honour.

DAWSON J: That sets a standard, does it not?

MR HANGER:  Your Honour, Mr Justice Williams said, and we

would adopt it, that it sets really a standard of

such a broad nature that it is such that it is

almost meaningless.

DAWSON J: But it is a statutory requirement, and why should

we decide that on the face of that statutory

requirement, the legislature had decided to exclude

the rules of natural justice?

MR HANGER:  Your Honour, because of the very wide discretion

given and because of the provisions throughout the

Act which seem to set up a legislative scheme, the

legislative scheme being that if he is not

discharged in that period, then there are elaborate
provisions relating to the method in which he be

discharged.

DAWSON J: That may be so, but the words "the commissioner

considers he is unsuitable" are not the same as

saying "for any reason that the commissioner might

care to adopt. There is a difference.

MR HANGER:  Yes, Your Honour. The commissioner does not

have to assign any reason for reaching his decision

other than that he is unsuitable. We would adopt

the statement in Ridge v Baldwin, which is adopted

in Coutts' case and applied by Mr Justice Williams
to the effect that if you do not have to give

reasons for anything, then there is no obligation

to give a hearing.

DAWSON J:	Have you got some authority that says that?
MR HANGER: Perhaps I am oversimplifying in my paraphrase.

The passage I was referring to was in Ridge v

Baldwin, quoted in Coutts v The Commonwealth,

157 CLR 91, at 102, in the quote from Ridge v

Baldwin:

Lord Reid, speaking of one who holds an office

at please, said:

"It has always been held, I think rightly,
that such an officer has no right to be heard

before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the

officer, he need not give any reason ... No

doubt he would in many cases tell the officer

Newnham 3 13/12/91

and hear his explanation before deciding to

dismiss him. But if he is not bound to

disclose his reason and does not do so, then,

if the court cannot require him to do so, it

cannot determine whether it would be fair to

hear the officer's case before taking action."

DAWSON J: But here the statute has intervened, and the

office is not held at pleasure, it is held under

statute.

MR HANGER:  Your Honour, the office of such a constable is,

in our respectful submission, an office that

continues to be held at pleasure. Section 73 of

the Act retains - - -

BRENNAN J: This is an alternative argument then, is it not,

Mr Hanger?

MR HANGER:	Yes, Your Honour.
BRENNAN J:	I mean your first argument has to turn upon

whether or not the exercise of the power under

section 10(1) is conditioned upon the giving of

natural justice?

MR HANGER:	Yes.
BRENNAN J:	You have a secondary argument, which is that the

office is held under pleasure, pursuant to

section 73?

MR HANGER:  Yes, Your Honour.

BRENNAN J: Well now, confine yourself to the first part of

the argument at this stage.

MR HANGER:  Yes, Your Honour. I was referring not only to

the wording of section 10, which is discussed at

length by Mr Justice Williams, but also to the

other provisions of the Act which set out the
position of the police constable.	Once he becomes

a constable generally, there is an elaborate code
of provisions applicable as to the method in which
he should be discharged, disciplined, or dismissed,

from his conduct and then the other part of the

code, following on from section 10, deals with

unfitness on medical grounds, and there is a fairly

elaborate set of provisions relating to discharge

on medical grounds.

BRENNAN J: But is that in consistent with the requirement

of natural justice in the 12 months or 18 months period provided for in section 10, because, as I

understand the argument, it would be this, that

here you have a constable who, unless he suffers an

adverse exercise of the power under section 10(1),

Newnham 4 13/12/91

is entitled statutorily to become a constable

without limitation of time, and then to be subject
to the protection of the boarding out provisions or

the investigatory provisions of the Act. Until

that 12 months or 18 months is reached he has no

entitlement, save that of natural justice with

respect to the exercise of the terminating power.

Now, how does one overcome that construction of the

Act?

MR HANGER: Well, we would only quarrel with that

construction where Your Honour introduced the

proposition that he is entitled to natural justice

in that first 12-month period, and the way we would

seek to overcome that is by the overall

construction of the Act which appears to be worded

in such a way as to give him no rights until he

becomes a member of the police force generally, as

opposed to in this probationary period. And

section 73 supports that proposition, we would

suggest, by saying that:

Save as is herein otherwise expressly

provided, nothing in this Act contained shall
be taken to prevent any member of the Police

Force from being discharged, dismissed, or

otherwise removed from office in the same

manner in all respects as if this Act had not

been passed.

DAWSON J:  You see it is expressly provided in the Act

otherwise. It is provided that he shall not be

dismissed unless he is unsuitable and before he is

classified as unsuitable it is an implication which

the law will make that he is entitled to a

hearing - a statutory implication.

MR HANGER:  Your Honour, we submit that the word

"unsuitable" is so wide -

DAWSON J: Well yes, you put that.
MR HANGER:	Yes.
DAWSON J:	It is not so wide that it does not provide a

standard; it does.

MR HANGER:  Thank you, Your Honour.

BRENNAN J: Take the present case, Mr Hanger. If the power

of termination could be shown to have been

is, and that the power had nothing to do with the particular condition of the applicant, then the exercise of the power would have been

exercised for the purpose simply of saving the entitlement

nugatory.

Newnham	13/12/91
MR HANGER:	Your Honour, that might be applying the

Wednesbury principle.

BRENNAN J:  No, not the Wednesbury principle, that the power

is conditioned upon the formation of an opinion by
the commissioner of unsuitability of the particular
candidate. If the power is exercised by reference
to other considerations, then it is exercised for a

purpose for which the power was not conferred. And

so the power would be sterilized.

MR HANGER:  Yes, Your Honour. I am not sure if I am

answering your question by saying that is not the

case here because, in fact, the commissioner gave

the - - -

BRENNAN J:  No, it is only to deal with the question of

whether unsuitability is so broad a criteria as to

contain no limiting factors and, if one understands

that unsuitability does limit consideration to the

position of the constable himself, then it is a

very short step to say that it is incumbent upon

the commissioner, before he exercises the power, to

say to the constable, "You appear to me to be

unsuitable for these reasons.	What do you have to
say?"

MR HANGER: Yes, Your Honour. Well, I cannot take that

point any further.

BRENNAN J:	No.
MR HANGER:	My argument on legitimate expectation would

fall, if the constable can succeed on the issue of the proper interpretation of the section - because if the proper interpretation of the section gives

him that right, then we do not have to worry about

legitimate expectations created by facts. The

third point that we wish to raise is that there the

situation is that the commissioner is the delegate

of the Crown, in acting under section 10, and
exercises the prerogative of the Crown.	The

authority for that proposition is Ryder v Foley,

4 CLR 422 at 433-434, 445-446 and 451.

DAWSON J: Whether he is or not exercising the prerogative,

the prerogative can be cut down by statute, and you

have the words of section 10.

MR HANGER:  Your Honour, section 73 seems to retain the

prerogative.

DAWSON J: Yes, but that is subject to the Act - - -

MR HANGER: Quite so.

DAWSON J:  - - - and section 10 provides as it does.

Newnham 6 13/12/91

MR HANGER:  Yes. Well, it was the equivalent of section 10

that was considered in Ryder v Foley, although it

dealt there with misconduct or unfitness and the

Court suggested that the commissioner, by virtue of

section 14 of the Queensland Constitution, was

exercising the prerogative power of the Crown in dismissing a police officer. Certainly I should

say to the Court that what he did there had to be

approved by the government, whereas the present

section does not require that, but the approach the

Court took was that the approval of the government
did not stop his having the right to exercise the

power and exercising it, it was merely - - -

DAWSON J:  In that case it was a case of a constable who

held office during pleasure, was it not?

MR HANGER:  Yes.

DAWSON J: It was not subject to statutory provisions.

MR HANGER:  Yes, Your Honour. I am reminded that section 6

of the Police Act of 1863 was also the section

which gave the police officer his tenure, and that
was a statutory section. And even though there was

a section in the Act dealing with the tenure of the

police officer and the dismissal of the police

officer, the court still said that in acting under

that section the commissioner was exercising the

prerogative power, and that his hand was not

fettered in any way.

BRENNAN J:  No doubt section 6 conditioned the exercise or

the power upon proof of misconduct or unfitness as

appears at 431 of the report, but does the case not

turn on the fact that this was construed as being,

in effect, a delegation of the prerogative power to

the commissioner by reason of the requirement that
the commissioner should submit his decision to

approval by the government?

MR HANGER:  Your Honour, we would submit not. I understand

what Your Honour is saying there, but it is said at

one of the passages to which I referred that the

submission of the approval to the government did
not stop the dismissal being operative, and it was

just for the government to keep a check on what the

commissioner was doing. That appears in the

judgment of Mr Justice Barton at 446 about ten

lines down:

I see nothing to bind the Commissioner to stay

his hand until the Government has approved.

The section is, in my judgment, not framed

with an object for the fulfilment of which

that delay would be essential. The proceeding

not being a judicial one, the next inquiry to

Newnham 13/12/91

my mind is, what is a sufficient submission

for the approval of Government? The

Commissioner has himself no power to bring

documents before the Executive. Even if the

words "the Government" are to be read to mean "the Governor in Council" - which is at least

doubtful - the Commissioner has done all that

an officer could do by way of submitting the

evidence, when he has handed it or forwarded

it to the Minister of the Crown responsible

for the Police Department. In the exercise of

his judgment it is competent for that Minister

to obtain an Order in Council approving of the

proof as sufficient.

DAWSON J:  Mr Hanger, I think it is incontrovertible that

since 1906 the circumstances in which the rules of

natural justice will be applied as required have

somewhat changed, have they not?

Yi.R HANGER: Without any doubt whatsoever.

DAWSON J: And perhaps considerations which are relevant in

this case were not present to the minds of the

members of the Court in Ryder v Foley.

MR HANGER:  Your Honour, all I can say in conclusion is that

this is an important point. There are provisions

in other State Acts that are similar to this. In

fairness I should say that this Act has now been

repealed, but it was replaced by an Act which gives

rise to a similar type of problem if one is looking

at the problem of whether a police officer has to

have a hearing before being discharged, and similar

sections occur in other States.

BRENNAN J: Under the new Act are the sections precisely

couched as they are in 10(1) and 73?

MR HANGER:	No, Your Honour, certainly not.
BRENNAN J: When you say "similar problems arise", they

would arise only if the language is appropriate to

give rise to them, obviously. How do they arise?

MR HANGER:	Your Honour, the submission that we make is that the question that arises generally is under the
various State Acts:  Does a police officer in his
probationary period - and I use the term
"probationary" loosely, and I think the Court knows
what I mean - have a right to be heard? That is the general proposition and one which we would
suggest the Court has not ruled authoritatively on.

In answer to your question how does it arise,

in the new Act 5.12(4) of that Act says that -

Newnham 13/12/91

The Commissioner may, in respect of an

appointee whose appointment is on probation,
at any time during the initial period of
probation or during any extension of a period
of probation, terminate that appointment.

The question arises whether he has to terminate after giving him a right to be heard.

BRENNAN J: It does not specify anything about giving

reasons or grounds?

MR HANGER:	No.
BRENNAN J:	I am afraid that might raise very different

problems in the present case where there is a

question of assignment of the ground of

unsuitability.

MR HANGER:  In other State Acts, similar kinds of provisions

appear. The relevant provisions, I think, I have

put on the actual synopsis: the Police Service Act,

New South Wales, section 73(3), and the Police

Regulation Act of Victoria, sections 8, BA and 9.

The New South Wales Act says, in section 8(5):

The Chief Commissioner may, at any time during

the period or further period of probation,

disallow an appointment -

In respect of junior police trainees:

The Chief Commissioner may, from time to time appoint so many fit male persons to be police

cadets as the Minister deems necessary and
notwithstanding anything in Part V of this Act

may dismiss or discharge any police cadet at

any time.

Part V of the Act is the one that deals with

charges and so on.

So that there seems to be this general

statutory intention of having police in this first

year of their life in the force with being under a

disability; that is to say that they can be

discharged at any time. The question is whether,

before discharging them, they have a right to be

heard. We submit that that is raised in this case

despite the use of the word "suitable" and appears

likely to be an ongoing problem.

BRENNAN J:  Mr Hanger, could I ask you a question about

Ryder v Foley? If you have a copy of it there, could I take you to page 434 where

Sir Samuel Griffith was referring to Shenton v

Smith and treating the tenure of office of a

Newnham 9 13/12/91

constable, subject to the provisions of section 6,

as being the tenure of an office held at the

pleasure of the Crown. Can that be said in respect

of a constable appointed under section 10 of the
present Act when, in the absence of an exercise of

the terminating power, he is statutorily entitled

to be appointed without limit of time or is deemed

to be appointed, I think it is, without limit of

time?

MR HANGER:  Your Honour, we would submit, yes. And, indeed,

the area of the Act in which section 73 has

operation, we would suggest, is in particular to

the probationary constable because after that the

Act, in fact, does deal with all of the rights and

privileges he has.	We submit that up until that
appointment that it does not deal with it.	So he,

in particular, is one person that seems to be

caught up, clearly, by the residual prerogative.

BRENNAN J:  Does Reedman v Hoare have anything to say about

this?

MR HANGER:  Your Honour, Reedman v Hoare was a case simply

on statutory interpretation. It acknowledges, as I

recall, that policemen do hold their office at the

pleasure of the Crown.	Reedman v Hoare, in fact,
was a termination by the Governor in Council.	So

it does not help me very much because this is not a

termination by the Governor in Council. That is

why I have not referred to it. That was a clearer

case than this one. Reedman v Hoare does say - and

I would suggest there would be no doubt about it -

that section 73 does preserve the prerogative.

Those are our submissions.

BRENNAN J: Thank you, Mr Hanger. Yes, Mr Dutney. Mr

Dutney, the Court would like to hear you on one

point only and that is how, if at all,

Ryder v Foley is to be distinguished from the

present case?

MR DUTNEY:  Your Honour, Ryder v Foley was really quite a

different case from the present one.	Can we take
Your Honours to page 436 of the report.	I might

say that Ryder v Foley was essentially a demurrer

type of case, where the policeman who had been
dismissed was seeking damages for wrongful
dismissal against the Crown. At the top of

page 436 in the second line in the judgment of the

Chief Justice, this passage appears:

It is not disputed in the present case that

the Government could dismiss the plaintiff at

pleasure. Indeed, that he holds office at

pleasure is shown by the admitted fact, that

if Parliament did not vote his salary he could

Newnham 10 13/12/91

be summarily deprived of office. As I have

just said, it is not disputed that the

Governor in Council, ie, the Executive

Government, could dismiss him at a moment's

notice, but it is contended that that cannot

be done by the Commissioner of Police. I

agree that the Commissioner of Police of his

own motion cannot do it, but the plaintiff in

this case complains that the Government have

dismissed him, and, as it is conceded that the Government can dismiss him at will, how can it

be said that the statement of claim discloses

any cause of action?

And then a few lines down, His Honour

the Chief Justice expressly declines to deal with
the position if proceedings had been brought

against the commissioner for relief, as distinct

from an action against the Crown itself, which had

the power to dismiss at pleasure, and we would

submit that that is a clear distinction between a

case such as this where we have an exercise of a

statutory power and no question of a dismissal

pursuant to the prerogative arises in the case of

this policeman.

BRENNAN J: Yes.

MR DUTNEY:  And further than that, we would submit that, so

far as a dismissal by the commissioner is concerned

under a power similar to section 10, the decision

of this Court in O'Rourke v Miller, 156 CLR 342,

clearly establishes that where the power to dismiss

a probationary constable is under a power such as

section 10(1), the requirements of natural justice

have to be met.

BRENNAN J: Yes. Thank you, Mr Dutney.

MR DUTNEY:	Thank you, Your Honours.
BRENNAN J: Mr Hanger, do you have anything in reply?
MR HANGER:	No, thank you, Your Honour.

BRENNAN J: There is insufficient reason to doubt the

correctness of the decision of the Full Court in

this matter to justify the grant of special leave

to appeal. Accordingly, special leave to appeal

will be refused.

MR DUTNEY:  The respondent seeks its costs, Your Honours.

BRENNAN J: Yes, Mr Hanger.

MR HANGER:  I do not want to say anything on that.

Newnham 11 13/12/91

BRENNAN J: It will be refused with costs.

MR DUTNEY:  Thank you, Your Honour.

AT 10.34 AM THE MATTER WAS ADJOURNED SINE DIE

Newnham 12 13/12/91